Write a brief note on amnesty international

Discuss with series of cases that fundamental rights and dpsp of state are complimentary

Explain the rights available for refugees and internally displaced persons

Briefly explore the non-western thought of human right

How did judicial activism in india develop the right to live in a healthy environment as a fundamental
right?
Human Rights Of Individuals And
Amnesty International Criminology
Essay
Human rights are the basic rights of any individual regardless of the fact that the individual may
belong to any religion, country, and background. Human rights are collective set of rights which
an individual enjoys to live. These are rights that apply to all human beings. Human rights
ensures that the dignity of an individual is protected, people are given respect within and in other
societies. Human rights expresses the idea that all human beings should be treated equally and
with justice and the moral values should be same and applied on all humans.
The Human rights are majorly categorized as religious, civil, political, social and economic rights.
(a) Civil rights comprises of rights which an individual enjoys as a citizen including right to life. It
includes freedom to live, protecting people from discrimination as gender, religion, immigrant
status, age etc. This includes the rights the state provides being a citizen.
(b) Political rights comprises of the right to vote, having the right to express and the right to
political participation.
(c) Economic and social rights includes the basic rights an individual enjoys, promoting equality
in society. It comprises of the right to proper education, right to a living in a safe environment,
adequate housing and food, right to proper health facilities and right to social security. Economic
rights includes the right to employment.
(d) Cultural rights constitute the right of a society linked to cultural freedom. The right to perform
cultural practices, to speak one's own mother language and the right to rituals and indigenous
land.
The protection of these rights are essential for the sustainability and survival of humanity. Human
rights benefits people in ways that they can be protected from any social, legal and political
violence. Violation in the human rights means to deny the basic rights of an individual. Violation
of human rights lead to unbalanced society. Human rights are sheltered by national and
international laws.

FIVE INTERNATIONAL CASES ON

VIOLATION OF HUMAN RIGHTS
Throughout the course of human history, there have been many examples of violation of human
rights. Some examples of violation of human right laws are given,

1. The most tragic case of human rights

violation took place in China where due to
hukou household registration system,
millions of rural migrants are denied basic
facilities including education for children.
This distinction is based on the place of
residence which has categorized citizens to
be eligible for certain socioeconomic
benefits. This system limits the rural from
some socioeconomic facilities as education,
health facilities, and better sources of income
which their urban dwellers enjoy.
2. The failure of the Mexican military court system to provide justice in cases involving military
abuses against civilians is a another examples of human rights violation. In many such incidents
sliders detained civilians, held them captive, tortured and abused them and even applied electric
shocks. No investigation are done on such cases and no action taken by military against the
soldiers involved in such incidents despite medical proofs of tortures.
3. Another example of human right violation is the forced evacuation of Roma Gypsy's by the
Italian government. In a controversial plan, the Italian government is evacuating nomadic camps
which will result in the destruction of 100 camps, leaving 1,000 people homeless resulting in
violation of rights of these peoples.
4. In one incident of Human right violation, Iraqi prisoners of war are held by Britain in legal black
holes similar to US at Guantanamo Bay, without trial for more than five years. Two Iraqi's Faisal
Attiyah Nassar al-Saadoon, 56, and Khalaf Hussain Mufdhi, 58 were accused of execution of
British soldiers but both men denied any involvement in the fighting.
5. Cases of detention of journalists and scholars in Iran, restricting their right of freedom of
speech and academic freedom are sad examples of human rights violations. Two Iranain
brothers and physicians Kamiar and Arash Alaei were charged for allegedly communicating with
enemy governments because of their participation in global health conferences.

AMNESTY INTERNATIONAL
Amnesty international founded in London In 1961 aims at providing justice and rights to those
who's rights have been violated. It aims at protecting the dignity of every individual belonging to
any society, ethnicity, religion or country.
People worldwide face many problems which results in violation or in some cases complete
denial of their basic human rights. Amnesty International works globally by collecting information
on issues societies are facing and focuses on reducing the abuses to peoples through campaign
locally and globally.
People in Amnesty International are involved in many activities worldwide ranging from helping
free prisoners, stopping violence against women and children, settling disputes between nations,
abolishing death penalties and to free people from the discrimination they face which results in
violation of their basic rights. Amnesty International emphasizes the Governments to provide
security to their citizens when they face a challenge or harsh condition.
MAJOR ROLES AND FUNCTIONS
PERFORMED BY AMNESTY
INTERNATIONAL
The main function of Amnesty International is to record any kind of human right violation
worldwide and work against it. Amnesty International stress that the Governments of every
country should work to meet its responsibility to protect, respect and promote the human rights of
every citizen.
Following are the major key areas on which Amnesty International works on,
1. Ending Violence against women: People in Amnesty International are involved in campaigns,
working against violence against women and girls worldwide. This includes ending all type of
violence against women ranging from domestic violence and abuse, sexual abuse, torture and
discrimination. Enforcement of laws on violence against women and abolishing laws on women
discrimination. It also involves empowering women so that they can protect themselves from the
discrimination and work as an active citizen.
2. Stopping violence against Children: Worldwide children faces many abuses and are denied
their basic human right. Children suffer many types of violence ranging from torture to death
penalties. Amnesty International aims at protecting the rights of children worldwide providing
them education and against imprisonment of children. It is also working towards reducing the
discrimination of girl's education. Amnesty International works to end the employment of children
into armed forces and to reintegrate former child soldiers back into civilian life.
3. Abolish Death Penalty and torture: Amnesty International opposes the death penalties,
regardless of the fact that what the crime is. Death penalty is an inhuman punishment and results
in violation of right to live.
4. Protecting Rights of Refugees, migrants and Internally displaced persons (IDPs) : Millions of
people are forced to leave their homes and move to new areas as a result of war, poverty and
natural disasters. These people move to other areas in their own country or to other countries in
search of homes and better standard of living. Unfortunately they face many situation which
results in violation of their basic human rights. As in case of Iraq where many people have
migrated to other places as a result of war, Amnesty International is calling on US, UK and other
developed countries for resettlement of these refugees who are in urgent need of shelter, food
and medical care.
5. Rights of Prisoners of Conscience : Amnesty International has been working for Prisoners of
Conscience and has succeeded in helping in release of many such prisoners. Prisoners of
Conscience are those prisoners who been imprisoned either because of lawful expression of
their beliefs or are human rights defenders facing government intimidation, individuals at risk of
execution, or those languishing in arbitrary detention.
6. Protection of Human dignity: To protect human dignity is the main function of Amnesty
International. Amnesty International focuses on promoting the respect of every individual
belonging to any religion, country, gender or ethnicity. Protecting the moral values of every
individual.

EXAMPLES OF PEOPLE FREED AFTER

INTERNATIONAL PRESSURE
There are many success stories of release of prisoners after international pressure. Such stories
area great hope for the human rights activists. Following are some of the success stories,
1. In 1998, two OCESP members, Rodolfo Montiel and Teodoro Cabrera were arrested by
military and were tortured to confess to arms and drugs-related crimes. Amnesty International
took up their case and found that they were found guilty on basis of false evidence. National and
international pressure in the case forced President Vicente Fox to order their release from prison
in 2001.
2. On 16th September 2005, Felipe Arreaga Sánchez, environmental activist, founder of the
Peasant Environmentalist Organization of the Sierra de Petatlán was released after international
pressure. He was arrested in November 2004, accused of a murder that took place in 1998.
3. In February 2009, Ayman Nour was unpredictably released from prison after four years due to
International pressure. He was a prominent political dissident and a one-time presidential
candidate.

HUMAN RIGHTS VIOLATION IN

DEVELOPED AND DEVELOPING
COUNTRIES
Though there have been records of cases and incidents in developed countries but the rate of
human rights violence is higher in developing countries as compared to developed countries due
to many reasons. In developed countries institutions are strong and corruption rate is low. In
developing countries freedom of speech and human rights is not well appreciated. In some
societies major rights are not even considered as human rights in the first place. Due to lack of
resources, unequal distribution of resources, injustice, unemployment and increase in violence
the rate of human rights violation is increasing. The increase in war on terrorism is also resulting
in human rights violations. War its self creates disturbance, depriving people of basic rights,
where fear, mistrust and violence increases in societies.
The main reasons resulting in violation of Human Rights in developing countries are,
1. Discrimination on the basis of ethnicity and casts systems: The discrimination done on basis of
cast system, ethnicity, family background results in human rights violation. For example as in
India the cast system which has divided the Hindu's into different casts, restricts them from
adopting a better standard of living. People who belong to lower classes do not have the right to
eat and sit between people belonging to high casts.
2. Democratic and institutional weakness: One reason for violation in civil and political rights is
because of bad governance, democratic and institutional weakness in developing countries.
Power exists in the hands of few people or in hands of those awarded through heredity. People
are not given right to vote; right to choose the kind of life they want to live.
3. Economic instability, Lack of resources and unequal distribution of resources: Economic
instability is major factor in failure of certain developing countries in human rights violations.
These societies do not have the means to facilitate their citizens with basic social and
economical rights. Another reason for human rights violation in developing countries is the lack of
resources. Inefficiency in allocation of resources such as food and health facilities, housing and
other results in violence in society. In this way people are forced to live in bad situations. Unequal
distribution of resources creates differences in society where large differences are created
between rich and poor.
4. In many societies a number of human rights violations are accepted culturally. There are
certain practices taking place in these societies which are not considered as violation of human
rights. In fact these practices have been part of the culture of the area for such a long time that
these practices have become traditions. No one looks at it as violation of human rights. Such as
in some societies of the developing countries women's are not given right to vote, girls are
denied right to education and practices such as Female Genital Mutilation (FGM) have become
traditions in these societies.
5. Corruption and violence is a major contributing factor in violation of human rights in developing
countries. Major threats of human rights faced by these nations is the result of corruption.
Violence created as a result of the above factors are depriving humans of their basic needs and
resulting in violation their basic rights.

ASPECTS OF POVERTY AND HUMAN

RIGHTS
Poverty is condition in which an individual, a family or society is deprived from basic economic
necessities required for living. Poverty leads to human rights violation. A poor person faces many
types of abuses, stress and difficulties. When an individual does not have the right to proper
standard of living, proper food, proper health facilities, education, to adequate housing and
income, results in violation of human rights. Most of the various aspects of poverty can be
considered as the denials of one's right to a decent living. Poverty leads to bad standard of living.
Everyone has the right to live a life in which all basic facilities are available. Some aspects of
poverty and human rights are given below,
1. Poverty and Child labor: In developing countries the ratio of child labor is very high due to the
fact that in these countries as there is economic instability, discrimination and poverty, families of
poor people have to work very hard to earn and compete for a proper living. In such societies
children work along with their parents due to which the child gets no education due to which the
ration of child labor has increased in the past few years in developing countries.
2. Poverty and Women rights: Over one million people around the world are living a life of
poverty and majority of them are females. Poverty results in discrimination in women rights in
many ways. It results in limitation of a women's access to power, education, health facilities, job
etc. In some cases it has been seen as there is increase in poverty, the female of the house
would limit everything and focus on her family so as to meet their needs. This way the female
neglects her own basic rights just for the sake of her family. Increase in domestic and sexual
violence is a major factor resulting in women poverty.
3. Poor societies face much discrimination: Poor societies are treated unfairly which is a major
barrier to achieving their human rights. Poor people do not have access to many facilities. In
some societies ethnic background and racism leads to poverty. As example of India is coated
earlier where due to cast system people face discrimination whereby human rights of an
individual or community is violated or completely denied. When people do not have the basic
necessities and live a life of poverty, it results in imbalance in society, creating violence and an
unsustainable society. Poor communities do not participate in decision making which leads to
bad policy making.
4. Violence and poverty: Violence in poor communities is caused as a result of poverty. When
people are denied their basic rights (right to food, adequate living, health facilities, employment
and freedom), they adopt certain methods which results in violence in society. Discrimination
between poor and rich in providing jobs and education creates frustration which results in
violence leading to violation of human rights.
5. Poverty leads to unsustainable living: When individuals in a society or country are not given
the basic rights of living leads to an unsustainable living.

ASPECTS OF TERRORISM AND

SECURITY ASPECTS OF HUMAN RIGHTS
The increase in conflicts with nations and the religious conflicts has initiated the increase and
deterioration of human rights globally.
1. Migration: Increase in war on terrorism has resulted in migration of thousands of people within
their own countries or to other countries. People leave their homes and property in search of a
peaceful place to live. First their right to live is deteriorated and secondly the area they migrate to
is totally new to them. These people face many problems. They live in tents no matter how harsh
the climatic conditions are, they are treated as strangers in the new place, have difficulty in
getting employment and are treated as violence creators. There are many examples of such
incidents; the recent is the Roma Gypsy's from Italy.
2. Increase in prisoners and abductions: Terrorism has increased the abduction of people to
places where human rights are totally violated. Disappearance and detention of prisoners and
keeping them in jails without trail or fair trial. Human abuse is increasing with the increase in
establishment of detention cells and camps like Guantanamo Bay and increase in handing of
suspects to be engaged in terrorist activities. Up till now no one knows how many detention cells
or camps are present and up till now due to this so called war on terrorism, how many individuals
including men, women and children have been detained or killed.
3. Security is the basic right of every citizen of a country, which is the duty of the Government
and other local agencies. But unfortunately Governments have adopted such methods to control
terrorism as torture, which are resulting in increase in insecurity of citizens. Killing and incidents
of abuse, rape, kidnapping, robbery increases.
4. Terrorism creates an environment of distrust, violence, affects human security and dignity,
destroys democratic setup of society, creates fear in society, negatively affects the social and
economical development of the country, results in violation of human rights and threatens the
security of the state.
5. One aspect of increase in terrorism and insecurity affecting the human rights is the destruction
and disturbance these activities cause. These activities causes mass destruction of public,
private and personal buildings. It creates fear in society. The daily routine lives of citizens is
badly affected. As in the case of suicide attacks in any country or such acts results in violation of
human rights. People do not feel safe and decrease their outdoor activities. Damage to property,
shop, office or factory decreases the labor of an individual thus affecting the livelihood and
income in an already economically instable country.

REFRENCES:
http://www.amnestyusa.org/document.php?id=ENGAMR410382005&lang=e.
http://www.adnkronos.com/AKI/English/Security/?id=3.1.108305094
http://www.guardian.co.uk/world/2010/mar/15/china-migrant-workers-children-education
http://www.hrw.org/en/news/2009/04/29/mexico-hold-military-account-rights-abuses
http://www.independent.co.uk/news/uk/home-news/army-accused-of-human-rights-abuse-in-
case-of-iraqis-held-without-trial-for-five-years-847457.html
http://www.medicalnewstoday.com/articles/146286.php
http://www.nytimes.com/2009/02/19/world/middleeast/19egypt.html
 The fundamental Rights and the Directive Principles of the state
Policy are complementary to each other instead of being
contradictory to each other. Still there are some differences remains
between the DPSPs and the FRs. They are shown in a table below.
Fundamental Rights Directive Principles of State Policy

1. The democratic political system has been 1. The economic welfare of the state is esta
established by providing the FRs. implementation of the DPSPs.
2. FRs are subject to court of low at any point 2. While DPSPs are not enforceable by the c
of time it anybody feels that his FRs are 3. DPSPs can never be suspended under an
being violated.
4. DPSPs are always affirmative because th
3. FRs can be suspended except the rights definite activity.
mentioned in Article 20 and 22 during
5. While, the scope of Directive Principles of
emergency.
DPSPs, the political, adminis-trative, eco
4. FRs are assumed negatively sometimes, international peace are also include.
because of their restrictive attitudes
towards the states.
5. The fundamental rights are a bit limited in
its scope.

Measure taken for the implementation of the DPSPs

For the implementation of the DPSPs by the government lots of activities
have been done. Panchayats have been established by the 73rd amendment
and Nagar Palikas have been established by the 74th amendments in 1992
under Article-40. Compulsory education to children between the age of 6 to
14 has been made a fundamental right under Article 21-A by 86th
amendment inspired by the Article 48.
The Government has fixed minimum wages for workers and has also
modernized the labour laws, to improve the conditions of labourers to
implement Article-42. Untouchability is now a punishable offence under the
constitution aiming at equality. To protect monuments and places and
objects of nation importance under Article-49, Ancient and Historical
Monuments and Archaeological sites and remains (Declaration of National
Importance) Act, 1951 has been enacted. Zamindari, Jagirdari etc. old
institutions of hereditary proprietary have been abolished by the Government
Under Article 39(b).
 Conflict between Fundamental Rights and Directive
Principles of State Policy
First Published: March 10, 2013 | Last Updated:October 22, 2016
The important question is where there is a conflict between the fundamental rights and directive principles,
which should prevail?
 The Fundamental Rights are the rights of the individual citizens guaranteed by the Constitution. The
directive principles lay down various tenets of a welfare state. The conflict arises when the State needs to
implement a directive principle and it infringes/ abridges the fundamental rights of the citizens.
 The chapters on the fundamental rights & DPSP were added in order of part III and part IV of the
constitution. The Fundamental rights are justifiable and guaranteed by the constitution. The Directive
principles were directives to the state and government machinery. But they are not enforceable, by the law.
Contents [hide]
 Champakam Dorairajan Case
 Golak Nath Case
 Kesavanand Bharti Case
 Minerva Mills Case
 Summary of Conflict between Fundamental Rights and DPSP
Champakam Dorairajan Case
This conflict between Fundamental Rights and DPSP came to the Supreme Court for the first time
in Champakam Dorairajan Case (1952). Smt Champakam Dorairajan was a woman from the State of
Madras. In 1951, she was not admitted to a medical college because of a Communal G.O. (Government
Order) which had provided caste based reservation in government jobs and college seats. This GO was
passed in 1927 in the Madras Presidency.
 Champakam Dorairajan Case was a first major verdict of the Supreme Court on the issue of Reservation.
 Champakam Dorairajan Case led to the First amendment of Indian Constitution.
This was the case, which when was in Supreme Court; the Lok Sabha was not formed. Lok Sabha was
formed in 1952.
The conflict was between article 16(2) from the chapter of Fundamental Rights and Article 46 of the
Constitution. Article 16(2) says that :
No citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of
them, be ineligible for, or discriminated against in respect of, any employment or office under the State.
And article 46 says:
The State shall promote with special care the educational and economic interests of the weaker sections of
the people, and, in particular, of the Scheduled Castes and the Scheduled Tribes, and shall protect them from
social injustice and all forms of exploitation.
The Supreme Court held that Article 37 expressly says that the directive principles are not enforceable
by court. Supreme Court mandated that the chapter on Fundamental rights in the constitution is sacrosanct
and the directive principles have to conform to and run subsidiary to the chapter on Fundamental Rights.
This means that Fundamental Rights were given superiority over the Directive principles. This
continued for a decade and half and some other cases such as Qureshi v/s State of Bihar, Sajjan Singh V/s
State of Rajasthan cases court confirmed this stand.
Golak Nath Case
In 1967 came a very important case. This was Golak Nath vs. The State of Punjab(1967). In this case, for
the first time a bench of 11 judges of the Supreme Court was formed. The court in this case laid down that
Fundamental Rights cannot be abridged/ diluted to implement the directive principles. This decision forced
the government to amend the constitution. By the 24th Amendment Act 1971, the Parliament amended Art.
13 and 368. This amendment made it clear that Parliament has the power to amend any part of the
Constitution including Fundamental Rights and the word ‘law’ as used in Article 13 does not include a
Constitutional Amendment Act.
Kesavanand Bharti Case
In the Kesavananda Bharti Case the Supreme Court ruled that Parliament could amend any and every part
of the Constitution including Fundamental Rights but it could not destroy the basic structure of the
Constitution.
To nullify the kesavanand Bharti Case, the 42nd Amendment further amended article 31 (C) and now it said
that “No law giving effect to the policy on the ground” that is inconsistent with or takes away or abridges
any of the rights conferred by article 14, 19 or 31.
Minerva Mills Case
The parliament by 42nd amendment further widened the scope of the Fundamental Rights. However in
the Minerva Mills v/s Union of India (1980) case, the Supreme Court struck down these provisions. On the
ground that it changed the basic structure of the Constitution. The Supreme Court held that the Constitution
exists on the balance of part III and Part IV. Giving absolute primacy to one over other will disturb the
harmony of the Constitution. This took the Article 31(C) to its prior condition that ” a law would be protected
by article 31C only if it has been made to implement the directive in article 39(b) and (c) and not any of the
articles included in Part IV.
Summary of Conflict between Fundamental Rights and DPSP
A member in the constituent assembly moved an amendment which sought to make the directive principles
justifiable. However, this move was turned down on the fact that, there was no use in being carried out away
by the sentiments. A court cannot enforce the directive principles and it is the strength of the public opinion
which makes these provisions enforceable, because there are elections every five year and the public, if the
DPSPs are not implemented can show the door to the government.
It was a view of Jawahar Lal Nehru that where there was a conflict between the Fundamental Rights and
Directive Principles the DPSP should prevail. However, where we look into the Judicial ‘nature’ of the
above two, we see that Supreme Court should upheld the Fundamental Rights because they are guaranteed
by the Constitution and justifiable. But the solution provided by the Supreme Court may be “Judicial” but
not “practical” in all cases. It is the parliament which can reach beyond the “Judicial” solution.
When a social conflict arises out of the conflicts of the Fundamental Rights and DPSP, the state should
emerge as a “Torch bearer” because ultimately it is the superiority of the “Social Interest” over the
“individual interest’. However, it is the duty of the Court to resolve a conflict with an eye on the constitution
and another on the social harmony.
After the Minerva Mills Case, The supreme court to the view that there is no conflict between the
Fundamental Rights and the DPSP and they were complimentary of each other. There was no need to
sacrifice one for the sake of the other. If there is a conflict it should be avoided as far as possible
REFUGEE LAW: THE INDIAN
PERSPECTIVE
India has had an age old tradition of according humanitarian protection to refugees and asylum seekers. It
has followed a very liberal refugee policy. However, the absence of a refugee specific legislation can be
attributed to India’s volatile situation in South Asian politics and the threat of terrorism faced by
it. [1] Even in such absence of a specific law, India has addressed the needs of refugees who have fled
from their home country into its territory.
India hosted around 420,400 refugees, including some 110,000 from Tibet who fled since China's 1951
annexation. Another 102,300, mostly Tamil Sri Lankans, escaped fighting between the Liberation Tigers
of Tamil Eelam and the Sri Lankan armed forces. There were about 36,000 Buddhist ethnic Chakmas and
Hajongs from present-day Bangladesh who fled to Arunachal Pradesh after Muslim annexation of their
land in 1964. [2]
India has accorded differential treatment to refugees belonging to different countries. There were two
major refugee flows from Bangladesh. The Chakmas were provided with inadequate facilities as confirmed
by National Human Rights Commission (NHRC) and repatriated in 1988. Tibetan refugees received far
better treatment in comparison to other refugee groups. With regard to Sri Lankan Tamil refugees, an
official refugee determination process has been practiced and the principle of non-refoulement [3] has been
complied with.
The International convention dealing with the issue of refugees is the 1951 Convention on Status of
Refugees and the 1967 Protocol attached to it. The term 'refugee' is defined as -
"…a person owing to well-founded fear of being persecuted for reasons of race, religion, nationality,
membership of a particular social group or political opinion, is outside the country of his nationality and is
unable or, owing to such fear, is unwilling to avail himself of that protection of that country; or who, not
having a nationality and being outside a country of his former habitual residence as a result of such events,
is unable or, owing to such fear, unwilling to return to it."
India is not a party to the 1951 Convention or the 1967 Protocol. An individual refugee is protected
essentially under the Constitution of India since there has been no domestic legislation passed on the
subject of refugees. But the provisions of these international treaties have now acquired the status of
customary international law [4] and maybe regarded as incorporated into the domestic law to the extent of
their consistency with the existing municipal laws and also when there is a void in the municipal laws [5] .
Also, Article 51(c) of the Constitution of India advocates fostering respect for international law.

II. Legal Framework In India

India has a federal set up and is described as a Union of States. This union is considered as a State in
international law. The Union legislature, i.e., the Parliament alone is given the right to deal with the subject
of citizenship, naturalization and aliens. India has not passed a refugee specific legislation which regulates
the entry and status of refugees. It has handled the refugees under political and administrative levels. The
result is that refugees are treated under the law applicable to aliens in India, unless a special provision is
made as in the case of Ugandan refugees (of Indian origin) when it passed the Foreigners from Uganda
Order, 1972. [6]
In India refugees are considered under the ambit of the term ‘alien’. The word alien appears in the
Constitution of India (Article 22, Para 3 and Entry 17, List I, Schedule 7), in Section 83 of the Indian Civil
Procedure Code, and in Section 3(2)(b) of the Indian Citizenship Act, 1955, as well as some other statutes.
Enactments governing aliens in India are the Foreigners Act, 1946 under which the Central Government is
empowered to regulate the entry of aliens into India, their presence and departure there from; it defines a
‘foreigner’ to mean ‘a person who is not a citizen of India’. The Registration Act, 1939 deals with the
registration of foreigners entering, being present in, and departing from India. Also, the Passport Act, 1920
and the Passport Act, 1967 deals with the powers of the government to impose conditions of passport for
entry into India and to issue passport and travel documents to regulate departure from India of citizens of
India.
Since these enactments do not make any distinction between genuine refugees and other categories of
aliens, refugees run a risk of arrest by the immigration authorities and of their prosecution if they enter
India without a valid passport/travel documents. [7] When a refugee is detained by customs, immigration
or police authorities for commission of any of the offences under the earlier mentioned enactments, he is
generally handed over to the police and a First Information Report is lodged against him. According to the
provisions of these statutes the refugee may face forced deportation at the established sea ports, airports or
the entry points at the international border, if he is detected without valid travel documents. He may also
be detained and interrogated pending decision by the administrative authorities regarding his plea for
refugee/asylum. A refugee also faces the prospects of prosecution for violation of the Registration of
Foreigners Act, 1939and Rules [8] made thereunder and if he is found guilty of any offence under this Act
he may be punished with imprisonment which may extend to one year or with a fine up to one thousand
rupees or with both.
However, in many cases the courts have taken a lenient view in the matter of punishment for their illegal
entry or illegal activities in India and also, by releasing detainees pending determination of refugee status,
staying deportation and giving them an opportunity to approach the United Nations High Commissioner of
Refugees (hereinafter referred to as UNHCR), refugees continue to run the risk of apprehension, detention
and prosecution for the violation of the Foreigner’s Act, 1946 [9] and the Foreigners Order,1948. The
Indian Supreme Court has also held that the government’s right to deport is absolute:
‘… the power of the Government in India to expel foreigners is absolute and unlimited and there is no
provision in the Constitution fettering this discretion… the executive Government has unrestricted right to
expel a foreigner.’ [10]
The question that arises here is whether refugees as a special class of aliens posses any more rights than
aliens in general?

III. Constitutional Framework For Protection Of

Refugees
The Constitution of India guarantees certain Fundamental Rights to refugees. Namely, right to equality
(Article 14), right to life and personal liberty (Article 21), right to protection under arbitrary arrest (Article
22), right to protect in respect of conviction of offences (Article 20), freedom of religion (Article 25), right
to approach Supreme Court for enforcement of Fundamental Rights (Article 32), are as much available to
non-citizens, including refugees, as they are to citizens.
The constitutional rights protect the human rights of the refugee to live with dignity. The liberal
interpretation that Article 21 has received now includes right against solitary confinement [11] , right
against custodial violence [12] , right to medical assistance [13] and shelter [14]
The Supreme Court has taken recourse to Article 21 of the Constitution in the absence of legislation to
regulate and justify the stay of refugees in India. In NHRC v. State of Arunachal Pradesh [15] , the
Government of Arunachal Pradesh was asked to perform the duty of safeguarding the life, health and well-
being of Chakmas residing in the State and that their application for citizenship should be forwarded to the
authorities concerned and not withheld. In various other cases [16] it was held that refugees should not be
subjected to detention or deportation and that they are entitled to approach the U.N High Commissioner for
grant of refugee status. In P. Nedumaran v. Union of India [17] the need for voluntary nature of
repatriation was emphasized upon and the Court held that the UNHCR, being a world agency, was to
ascertain the voluntariness of the refugees and, hence, it was not upon the Court to consider whether
consent was voluntary. Similarly, according to B. S. Chimni, the Supreme Court has erred in concluding in
Louis de Raedt v Union of India that there is no provision in the Constitution fettering the absolute and
unlimited power of the government to expel foreigners under the Foreigners Act of 1946. [18]
In actuality Article 21 of the Indian Constitution does impose certain constraints: any action of the State
which deprives an alien of his or her life and personal liberty without a procedure established by law
would fall foul of it, and such action would certainly include the refoulement of refugees. Therefore, the
author opined that the Court should have proceeded to test the validity of Foreigners Act as against Article
21.

IV. Incorporating International Law In Domestic

Law
International law has accepted and defined refugees as a special class of aliens. Does this acceptance by
International law import any legal consequence on the Indian Government in the absence of any legislation
on the subject?
It is true that India has not ratified the 1951 Convention and the 1967 Protocol to it, however, it acceded to
various Human Rights treaties and conventions that contain provisions relating to protection of
refugees. [19] As a party to these treaties India is under a legal obligation to protect the human rights of
refugees by taking appropriate legislative and administrative measures under Article 51(c) [20] and Article
253 [21] and also under the same laws it is under the obligation to uphold the principle of non-refoulement.
India is a member of the Executive Committee of the office of United Nations High Commissioner for
Refugees which puts a moral, if not legal obligation, on it to build a constructive partnership with UNHCR
by following the provisions of the 1951 Refugee Convention [22] .
With regard to adopting international conventions in domestic laws, in Vishaka v. State of Rajasthan [23] ,
the Court observed that reliance can be placed in international laws. Therefore, the question that arises is
whether India can refer to the 1951 Convention in interpreting the domestic legislation and whether it is
really necessary to ratify these conventions. It is to be noted that merely ratifying the 1951 Convention
does not ensure that the asylum seekers will not be kept out and also Article 42 of the same Convention
permits reservations with respect to the rights of refugees which will defeat the purpose of ratifying the
Convention.
The solution to treat refugees with dignity in India is to either ratify the 1951 Convention and incorporate
it into domestic law or enact a uniform legislation specifically for refugees so that it is not left to the
discretion of the executive and the judiciary to decide their fate.